I concur in the main with what is said in the majority opinion, but it seems to me that the court should not have stricken paragraph 8 of the answer, although it may not be deemed to have constituted a complete defense to the suit. The chancellor might well have considered this paragraph in connection with the matter of fixing the time of the sale. This paragraph of the answer set up practically the same economic conditions which the Supreme Court of the United States held to be sufficient to warrant the Legislature of Minnesota in its adoption of the moratorium statute, which was upheld, both by the Supreme Court of Minnesota and by the Supreme Court of the United States, and which case is cited and quoted from in the majority opinion. In that case Mr. Chief Justice HUGHES stated that: "In the absence of legislation, courts of equity have exercised jurisdiction in suits for the foreclosure of mortgages to fix the time and terms of sale and to refuse to confirm sales on equitable grounds where they were found to be unfair or inadequacy of price was so gross as to shock the conscience." In other words, the Court intimated that, in the absence of legislation on the subject, courts of equity could have granted the same relief without the moratorium statute. Quite a number *Page 10 of cases are cited in the footnotes to sustain his above quoted proposition.
I agree with the majority that there was nothing in the answer to bar the Chancellor from proceeding to ascertain the amount due on the mortgage and enter a foreclosure decree, but I do think that the stricken portion of the answer might well have been considered by the Chancellor in connection with the question as to whether or not, in view of the economic conditions prevailing in Ft. Myers and in the State and country at large, at the time, some reasonable postponement of the day of sale, so as to give the mortgagors some chance to refinance and save the property, could reasonably have been granted. It appeared from the stricken portion of the answer that the real or potential value of the property, as contrasted with the then market value, was several times greater than the amount of the mortgage; that it was business property, and bringing in some rentals, approximately $65.00 per month, which was being collected and retained by the mortgagee, the defendant mortgagor having agreed to that arrangement back in 1931, and that he was willing to continue to permit the mortgagee to collect and retain all rents from the premises so long as the court should deem necessary and proper. The balance due on the mortgage was about $3,625.00.
It thus appears that the mortgagees would not have been harmed by a stay of the foreclosure sale for a reasonable length of time, as they were already receiving all the income from the mortgaged premises and the mortgagors were willing for this to continue for such time as the court might fix.
In the majority opinion, that part of Chief Justice HUGHES' opinion in the Blaisdell case, to the effect that "the courts have no authority to alter a statutory period of *Page 11 redemption," is italicized. However, that principle is not applicable here. We have no statutory period of redemption in this state. In Florida, default in the payment of the principal or interest on a mortgage does not divest the mortgagor of the legal title, and vest it in the mortgagee, leaving in the mortgagor only a statutory period in which to redeem it. With us, a mortgage is merely a lien on the land, and the title and the right of possession, with all the rents and profits that go with possession, remain in the mortgagor, and title is divested only by a sale under an order of a court of equity.
The whole matter of foreign foreclosures in this state is in the hands of our courts of equity, which are vested with full equity powers. Thus, equity will enforce the statutory policy of leaving the mortgagor in possession of the mortgaged property until after foreclosure and sale, as general rule, but if it becomes necessary to subordinate the mortgagor's possession in order to protect the equitable rights of the mortgagee, our courts of equity will exercise that power. See Pasco v. Gamble, 15 Fla. 562; Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So.2d 241. And our courts of equity will prevent by injunction a mortgagor from impairing the value of the property embraced in the mortgage lien on which the mortgagee has a right to rely for the security of his debt. Logan v. Slade, 28 Fla. 609, 10 So.2d 25. If, therefore, our courts of equity can, as they have done, extend the use of their broad equitable powers to protect the rights of the mortgagee, there should not be anything shocking about the idea of a reasonable exercise of those same broad equitable powers to also protect the rights of the mortgagor in proper cases. The undoubted right of a court of equity to set aside a foreclosure sale, where the amount of the bid is grossly inadequate, *Page 12 is well settled, and if it has this power, certainly it has the power to make some postponement of a sale when, to make an immediate sale, under the then existing conditions, would be bound to result in such gross inadequacy of price as to require the sale to be set aside.
For these reasons, I do not think that the stricken portions of the answer were entirely irrelevant to this matter of fixing the time of the foreclosure sale, and that the Chancellor should have permitted that portion of the answer to stay before him for consideration in that connection. While the specific prayer for stay of the proceedings during the pendency of the present economic depression could not be considered, as no one could tell when it would end, there was also a general prayer for relief in that connection under which the court might have granted some reasonable stay of the time of the sale, say for a few weeks or a few months, if it appeared to the Chancellor that an early sale would result in a great sacrifice of the property, and that by postponing the sale for a few weeks or a few months, the mortgagors might be able to refinance the property, and pay off the mortgage debt, thus exercising the equity of redemption which is recognized in this State and save themselves from great loss and at the same time secure to the mortgagee the full amount of the debt, the mortgagees meanwhile being given all the income from the property to apply on interest and principal.
While courts of equity have no right to administer justice upon the mere individual conception of the Chancellor as to what constitutes "natural justice" in the particular case, but should administer it according to the well established precedents and principles of our system of equity jurisprudence, yet the fact remains that rules of administration and procedure in equity are ordinarily sufficiently elastic *Page 13 to enable the court to do equity in the particular case which may be under consideration. Cox v. Burgess, 139 Ky. 699, 96 S.W. 577; Thatcher v. Thatcher, 117 Me. 331, 104 A. 515; Daland v. Williams, 101 Mass. 571. It is a fact that while the principles of equity jurisprudence are quite well and firmly established, its rules of administration are more flexible than those which obtain in actions at law. Blackstone said that "Equity is the correction of that wherein the law, by reason of its universality, is deficient." There is yet some truth in that statement, even though we have passed beyond the time when equity, as "a court of conscience," would presume to proceed on the basis of the views of the particular Chancellor, as to what he thinks ought to be done in the particular case, without any regard to the well established principles of equity jurisprudence, which would, as has been said, make the decision in any equity case as variable as "the length of the Chancellor's foot." But the fact remains that there still exists, in the system of equity jurisprudence, a certain amount of elasticity in its practice and administration which permits equity courts, in many instances, to "do equity" in the particular case, in conformity with the principles of equity which have been worked out throughout the past several centuries. There yet remains some difference between equity practice and common law practice. And I think this might be recognized in this case.
It is interesting to note a remark made by the Supreme Court of North Carolina, in the case of J. A. Bolich, Jr., et ux., v. Prudential Insurance Company of America, et al., 202 N.C. 789,164 S.E. 335, 82 A. L. R., 974, decided June 15, 1932. This case is adverse to the appellants but the court said (82 A. L. R. text 976):
"Perhaps no court is wise enough to declare with absolute finality that no economic or financial stringency of distress *Page 14 would warrant the intervention of equitable principles in restraining the power of sale in instruments securing debts * * *."
On December 1, 1932, the Supreme Court of South Carolina rendered an opinion in the case of Columbia Theological Seminary v. Arnette, et al., reported in 167 S.E. 465. This was a case involving the foreclosure of a mortgage and the court took occasion to say:
"(8) As to a sale of the mortgaged premises during the present great financial depression existing throughout the whole country, we deem it not out of place for this court to say that we think it is not only within the power of the circuit judge, sitting as a chancellor in equity, to take present conditions into consideration, but that it is right for him so to do in fixing the time for the sale. The court of equity was established for the purpose of giving relief that is equitable, not only to plaintiffs, but to defendants in that court. The defendants in mortgage foreclosure cases, especially those whose homes are involved, who are without fault of their own, but on account of the country's condition are unable to meet their obligations, and the infant defendants in this cause certainly come within that class, are entitled to much consideration and such relief as it is proper for equity to give them, just as the plaintiff is entitled to consideration and relief. See Southern Trust Co. v. Cudd, 166 S.C. 108,164 S.E. 428, as to similar expressions of this court. The fixing of the time of sale of mortgaged premises is almost entirely with the discretion of the circuit judge, and he may, in his decree, fix reasonable conditions. We are confident that the judge who finally fixes the time of sale in this case will take into proper consideration the rights and circumstances of the defendants, and that his *Page 15 decree, with proper conditions stated therein, will protect those rights."
Some of the other cases bearing on this question are as follows:
Suring State Bank v. Ernestine Giese, 246 N.W. 556, Wis., 85 A. L. R. 1477 (Ann. 1480).
John H. Blaisdell v. Home Building Loan Association,249 N.W. 334, Minn. 86 A. L. R. 1507.
State of North Dakota, ex rel. Harry C. Cleverings v. E. M. Elien, Sheriff, 249 N.W. 118, N.E., 86 A. L. R. 1523 (ann. 1539).
Arthur T. Vanderbilt, Trustee, v. Brunton Piano Co.,169 A. 177, N.J. 89 A. L. R., 1080 (ann. 1087).
For the reasons given, I think the court below erred in granting the motion to strike and that the cause should be reversed and remanded.